STATEWIDE GRIEVANCE COMMITTEE

 

Tyrone King, Complainant vs. Heather A. Abel, Respondent

 

Grievance Complaint #05-1117

 

DECISION

 

Pursuant to Practice Book §2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 235 Church Street, New Haven Connecticut on April 5, 2006.  The hearing addressed the record of the complaint filed on December 15, 2005, and the probable cause determination filed by the Fairfield Judicial District Grievance Panel on February 7, 2006, finding that there existed probable cause that the Respondent violated Rules 1.1, 1.3 and 8.4(4) of the Rules of Professional Conduct.

 

Notice of the hearing was mailed to the Complainant, to the Respondent and to the Chief Disciplinary Counsel’s Office on March 2, 2006.  The Complainant and the Respondent appeared and testified at the hearing.  This reviewing committee also heard testimony from Attorney Ernest C. Robear, Deputy Chief Clerk for Geographical Area 2 in Bridgeport. Pursuant to Practice Book §2-35(d), Chief Disciplinary Counsel Mark Dubois pursued the matter before this reviewing committee.  Pursuant to Practice Book §3-14, student interns Michelle Morin and Lauren Cooper of the Yale Law School Lawyering Ethics Clinic assisted Attorney Dubois in the presentation of this matter before this reviewing committee.  One exhibit was admitted into evidence.

 

This reviewing committee finds the following facts by clear and convincing evidence:

 

The Respondent, a public defender with twelve years experience, represented the Complainant in a criminal trial (State v. Abel, CR 04-200607-S) that resulted in the Complainant’s conviction for narcotics trafficking.  Although the matter was pending in the Geographical Area 2 courthouse in Bridgeport it was tried at the Judicial District courthouse. The Complainant was sentenced on January 31, 2005 to thirteen years in prison.  Following the sentencing, the Complainant signed several forms including a “Notice of Right to Appeal;” a “Notice of Right to Have Sentence Reviewed/Application for Review;” and a “Notice of Application.”  These documents were filed by the Respondent at the Judicial District courthouse but she did not make file copies because her office was located at the Geographical Area courthouse.  A certified copy of the court’s file in State v. Abel contains these documents.

 

The file in State v. Abel, does not contain, however, an “Application for Waiver of Fees, Costs and Expenses and Appointment of Counsel on Appeal,” the timely filing of which was necessary for a new public defender to be appointed to represent the Complainant on appeal and to toll the twenty day limitation period for the appeal to be filed.  The Complainant realized that a new public defender would be appointed for the appeal but thought that all of the paperwork necessary to effectuate the appointment had been filed.  The Respondent believed that she had the Complainant sign an application for waiver of fees, which was filed with the other post-sentencing documents.  The Respondent was unable to produce a copy of any of the documents that she filed because she did not make copies before filing them.  

 

The protocol for maintaining a criminal file at the Geographical Area 2 courthouse in Bridgeport requires the clerk to list under the “other court action” area of the information relevant filings made by the parties.  Although the court file did not have an application for waiver of fees in it, there were several instances where documents in the file were not listed on the “other court action” area of the information.  Likewise, the “other court action” area of the information listed several documents that should have been, but were not, in the court’s file. 

 

After his conviction, the Complainant contacted the Respondent to obtain a copy of his trial transcript.  The Respondent sent him a partial transcript in June of 2005.  On or around September 1, 2005, the Complainant wrote to the Respondent to request, among other things, a copy of all motions filed in his trial.  Not having received them, the Complainant sent an additional written request in October.  In December of 2005, the Office of Chief Public Defender wrote to the Respondent and informed him that there was no record of an appeal in his case.  This grievance complaint followed.

 

We conclude by clear and convincing evidence that the Respondent violated Rule 1.3 of the Rules of Professional Conduct.  In this case, the Respondent’s client was convicted of numerous felonies and sentenced to a lengthy prison term.  Moreover, he was indigent and required the services of a public defender.  The Complainant was entitled to have his attorney diligently represent him to the conclusion of her representation.  This representation included the filing of all necessary documents to preserve the Complainant’s appeal including the Application for Waiver of Fees, Costs and Expenses and Appointment of Counsel on Appeal.  In light of the condition of the court’s file that was entered into evidence, which did not include documents that were listed as filed, we cannot conclude by clear and convincing evidence that the Respondent failed to file the Application.  We do conclude by clear and convincing evidence, however, that the Respondent’s failure to make a copy of the documents filed on behalf of the Complainant after he was sentenced violated Rule 1.3 of the Rules of Professional Conduct.  It is of course prudent that an attorney keep copies of all documents filed in court on behalf of any client.  When that client is in the situation faced by the Complainant – indigent, incarcerated and in need of a public defender to file an appeal – it is axiomatic that the lawyer make copies of such important filings.  The Respondent’s failure to do so in this case violated Rule 1.3 of the Rules of Professional Conduct.

 

We do not find clear and convincing evidence of a violation of either Rule 1.1 or Rule 8.4(4) of the Rules of Professional Conduct.  The Respondent was clearly competent to represent the Complainant and thoroughly knowledgeable in the post-sentencing filings.  We also conclude that the record does not support a finding that the Respondent engaged in conduct prejudicial to the administration of justice.

 

The Respondent is ordered to attend in-person a minimum of 3 credit hours of a continuing legal education course in criminal procedure at which the appellate process is discussed at her own expense, within 180 days of the issuance of this decision.  The Respondent is further ordered to provide the Statewide Grievance Committee with written confirmation of her compliance with this condition within 30 days of completion of the continuing legal education course.

 

 

 

 

                                                                                    DECISION DATE:           5/12/06               

 

                                                                                                                                       

                                                                                    Attorney Noble Allen

 

                                                                                                                                         

                                                                                    Attorney Howard M. Gould

 

                                                                                                                                  

                                                                                    Mr. William Carroll